The criminal justice system is one faced with a precarious problem of inequality within the criminal justice system. The problem is manifested whenever the criminal law through the police encounters the public. The problem manifests itself all through the process from the moment of making the arrest all through to sentencing. Of main concern is the disadvantages that befall the marginalized communities including the poor, women, and persons of color(Gavrielides 2014). The disadvantage upon the marginalized can arise when affiliates of these communities are alleged of, indicted with, sentenced of crimes, or when they themselves are targets of these crimes. It is a fact that the minority, poor, or those regarded as the weak are more likely to be mistreated whenever there is a confrontation between them and the police. Contestation by members of the subjugated groups tends to escalate the magnitude of the confrontation under the existing circumstances of authoritarian policing. It is important to acknowledge the fact that this is not an Australian problem but a problem that has persevered the criminal justice system on a global scale(Loury 2010).
The former prime minister to the UK, David Cameron once remarked, “If you are black, you are more likely to be in a prison cell than studying at a top university. In addition, if you are black, it seems you are more likely to be sentenced to custody for a crime than if you are white. We should investigate why this is and how we can end this possible discrimination.” Research indicates that 26% of prison population is from the minority ethnic groups whereas they only represent 14% of the general population. This has raised alarm in regards to the inadequate treatment prevalent in the criminal justice system(Raphael & Lofstrom 2016). The percentages highlighted above manifests inequality within the justice system and the persistence of institutional racism. Race is used a focal point for inequality. The solution to this however is not readily available.
Statistics from the Australian Institute of Criminology reveal an alarming trend in the over-representation of the aboriginal in the criminal justice system. Data from 2010 shows that the aboriginal rate of imprisonment was approximately 2,327 per 100,000 population that represented a 12% increase from the figures collected in 2007 (AIC Facts & Figures, 2011). Between 2009 and 2010, the percentage of aboriginal attending to community service orders was 13 times higher than non-indigenous persons and the indigenous juvenile detention rate was 429 per 100, 000 compared to 17 per 100, 000 population of non-Indigenous youths (AIC Facts & Figures, 2011). Generally, the number of aboriginal people serving sentences in the Australian Judicial system is relatively higher than that of non-original persons(ABS National Prison Census, National Policy Custody Survey, the Australian Institute of Criminology (AIC) National Deaths in Custody Program Annual Report, AIHW Juvenile Justice National Minimum Data Set 2008).
Andrea Armstrong applies the implicit bias theory to examine the inequality in the criminal justice system by examining how staff judge and evaluate rules violations are mainly influenced by the prisoners’ racial identity. She concludes that the disciplinary rules governing the inmate attitudes and demeanor are applied differently based on the racial identity(Donnelly 2017). For instance, prison wardens in the US are more likely to punish severely prisoners of African American descent than they punish whites. The problem in the justice system lies in the manner in which the law enables racial inequality within the correctional facility context through the perpetuation of the constitutionality of ambiguous and uncertain rules that provide a conducive environment for implicit bias within the judicial system(Lofstrom & Raphael 2016a). Feagin 2010 argues that, “Being black in U.S. society means always having to be prepared for anti-black actions by whites—in most places and at many times of the day, week, month, or year. Being black means living with various types of racial discrimination from cradle to grave.”
The manner in which we speak of, the language that is employed, and the categorization used fundamentally creates problems as well as providing certain solutions. As such, the object of discussion is defined in a given manner and the probable policy rejoinders embraced to address the problem at hand. The language used in a given scenario address the question of power; who can define the given problem in a certain manner and who is oppressed in the given definition. Based on this analogy, it appears that the language used in defining crime, criminals, and the crime problems become predisposed to the language of construction and representation. The problem of inequality within the judicial system sets in whenever the construction and representation manifested in the definition set above is aligned within notions of racial constructs(Leonard 2015).
The gang discourse as identified in the, ‘Joint Enterprise and Racist Typology of Gangs’ is influential in the course of criminalization of the Black and Asian Minority Ethnic Groups. Employing casual procedures when addressing ethnic differences and sex differences in regards to crime is a key contributor of inequality within the judicial system and the manifestation of crime within the society. This becomes a societal problem in that crime becomes associated with a particular groups often leading to prejudice. Whereas factors such as family conflicts, drug abuse, and opportunity (lack of) driven crime are often identified as main contributors of delinquency, social constructs often skew the entire process(Lewis 2006). Research nevertheless has not identified the link between race and ethnicity as the perpetrators of crime as is currently perceived by the strategies employed by criminal justice in particular police whenever they are called in to address violent individuals. Basing the trial of violence on the ‘gang’ archetype undercuts justice and elevates queries on procedural (un)fairness amongst the minority groups(Lofstrom & Raphael 2016b).
Hogg (2001) reveals that the aboriginal Australians are unduly over-represented in prisons and in other areas of the penal system. The conflict theory suggests that the difference in the representation within the penal system can be attributed to the disadvantaged situation in both socioeconomic standings and discrimination at an individual and institutional level. This in a way signifies the prevailing power struggle amongst the central Anglo-group and the native community(Hurrell 2001). The current status quo in the penal system are a representation of the long ranging effects of the colonial and neo-colonial practices that have over the years resulted in self-perpetuating cycle of the native criminalisation. Research has it that indigenous defendants are more likely to be imprisoned in the penal system(Omori 2014).
Conflict theory in relation to Marxism implies that the society realism is historically embedded in a progression of continuous transformation because of the unavoidable social class conflict(Becker 2014). Conflict theory is an attempt to address the inequality in the judicial system associates it to how power struggles are now institutionalized revealing the hand of the powerful over the minority groups in the judicial system. The negative discrimination as indicated by Jeffries & Bond (2001) is deeply intertwined in the criminal justice system where the differences in the economic status quo between the indigenous and the non-indigenous have greatly influenced the legal outcomes in favour of the powerful(Reamer 2004). The over-representation of the aboriginal in the penal structure can be traced back to the unalleviated subjugation of the aboriginal persons by the central Anglo-community since the white settlement began in 1788. The current situation therefore is a continued struggle between the colonized and the colonizer that has persisted in the better part of the century and is deeply entrenched in the criminal justice system(Brown 2012).
An overview of the Australian history reveals that when the white settlers invaded the mainland in 1788, they declared the ‘terra nullius’ marking the beginning of a crusade of attempted massacre against the native inhabitants. This course eventually led to the obvious communal disadvantage and a sequence of the native criminalization. Regardless of the fact that frequent arrests will eventually lead to imprisonment and the denial of bail, the repressive judicial system with great influence from the colonial times has prompted the over-representation of the aboriginal. Initially it was the inhuman treatment of the natives by the colonizers and authorities; this was followed by the eviction of the natives from their original land, finally it was the confiscation of native children from their respective families. Consequently, a majority of the confiscated children endured cruelty, as they were primed to be sold to slavery and servitude of their masters. Problematic parenting is the foundation of intergenerational antisocial behaviour that eventually leads up to delinquent behaviour(Gavrielides 2014).
Individual and institutional discrimination is a factor that can be used to explain the inequalities within the criminal justice system. The police have a tendency of overexerting themselves in confrontational situations, which often leads to criminal charges(Brown 2011). Police in discharging their duties and in cementing their position as law and order, often exercise their social control over the powerless with a disregard of the prevailing conditions such as homelessness. Issues such as the criminal record, sex, and race are often used to influence the sentencing explaining how the negative discrimination theory is used to predict how the law is thoroughly applied to the minority groups. The minority are often regarded as a threat to the majority hence they must be dealt with in all manners possible (ABS National Prison Census, National Policy Custody Survey, the Australian Institute of Criminology (AIC) National Deaths in Custody Program Annual Report, AIHW Juvenile Justice National Minimum Data Set 2008).
Therefore, the overrepresentation of the aboriginal in the Australian Criminal Justice System can be explained through the socio-economic status quo and discrimination in the penal process. The two can further be traced to the continued power struggle that has dominated the history of Australia between the colonizer (white settlers) and the colonized (aboriginal). The aboriginal are termed as a threat to the majority non-original persons explained by the conflict theory as a classic example of a struggle between the powerful and the powerless(Braithwaite 2006). Racism and racial discrimination have been credited to the meagre prospects and other social factors, including inequalities in ambition and accomplishment. Whereby the struggle between the strong and the weak is driven by the concept that one race deserves privileges, and that this fundamental status quo must be protected at all costs. Discrimination against various ethnic groups by the white majority brings out similar attitudes and behaviours, which can create a multi-tiered society. Racial discrimination continues and intensely upsets the life probabilities and routine circumstances of the average life for racial minorities, which have over the years being imprinted in the justice system(White 2015).
To fend off inequality in criminal justice, social justice should come into place. Social justice means that both the institution at a structural and process level ought to be free, equally accessible, and readily available to all regardless of age, sex, religion, color, sexual orientation amongst others. Laws and legal institutions must guarantee equivalent opportunity be provided for learning, living, earning, and education. This way social justice is used a framework for equal and equitable dissemination of resources and opportunities through which outside factors used to define and label people are rendered useless. The government of the day has a moral and ethical obligation to warrant that the people have equal opportunities, rights, and resources as a foundation to a free and fair society. Social justice is about fairness, which provides the solution to the issue of inequality as an institutional problem rooted in the history of the nation(Gavrielides 2014).
References
ABS National Prison Census, National Policy Custody Survey, the Australian Institute of Criminology (AIC) National Deaths in Custody Program Annual Report, AIHW Juvenile Justice National Minimum Data Set, the A.N.A. and T.S.I.S.S. (NATSISS) and the A.D.U.M. in A. (DUMA)., 2008. 2.13 Contact with criminal justice system,
Becker, S., 2014. “Because That’s What Justice Is to Us”: Exploring the Racialized Collateral Consequences of New Parochialism. Critical Criminology, 22(2), pp.199–218.
Braithwaite, J., 2006. Doing justice intelligently in civil society. Journal of Social Issues, 62(2), pp.393–409.
Brown, D., 2011. The Global Financial Crisis: Neo-Liberalism, Social Democracy, and Criminology. In What is Criminology?.
Brown, D.K., 2012. Criminal law theory and criminal justice practice. american criminal law review, 49(1), pp.73–103.
Donnelly, E.A., 2017. The Politics of Racial Disparity Reform: Racial Inequality and Criminal Justice Policymaking in the States. American Journal of Criminal Justice, 42(1).
Gavrielides, T., 2014. Bringing Race Relations Into the Restorative Justice Debate: An Alternative and Personalized Vision of “the Other.” Journal of Black Studies, 45(3), pp.216–246.
Hurrell, A., 2001. Global inequality and international institutions. Metaphilosophy, 32(1-2), pp.34–57.
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Lewis, C., 2006. The prosecution service function within the english criminal justice system. In Coping with Overloaded Criminal Justice Systems: The Rise of Prosecutorial Power Across Europe. pp. 151–184.
Lofstrom, M. & Raphael, S., 2016a. Crime, the Criminal Justice System, and Socioeconomic Inequality. Journal of Economic Perspectives, 30(2), pp.103–126.
Lofstrom, M. & Raphael, S., 2016b. Crime, the Criminal Justice System, and Socioeconomic Inequality. J. Econ. Persp., 30, p.103.
Loury, G.C., 2010. Crime, inequality & social justice. Daedalus, 139(3), pp.134–140.
Omori, M.K., 2014. Cumulative racial inequality of drug defendants.
Raphael, S. & Lofstrom, M., 2016. Crime, the criminal justice system, and socioeconomic inequality. Journal of economic perspectives, 30(2), pp.103–126.
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